Outside Voices

THE EQUAL RIGHTS AMENDMENT – SIMPLE JUSTICE

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

“It’s a boy!” “It’s a girl!”

The sex of a newborn is of such significance that before the era of prenatal testing, those were probably the first words heard by babies at the moment of birth. Besides the physically obvious, a less evident distinction between the sexes exists from moment one – the different legal standing of males and females.

“We the people” implies that the U.S. Constitution is a document for everyone, but when it was adopted in 1787, its promised rights were fully enjoyed only by certain categories of white males.

The history of the struggle to make the Constitution color-blind is well known. Less acknowledged is the fact that women have fought long and hard political and legal battles to gain one by one the rights that all male citizens eventually came to hold automatically.

In 1920, after seven decades of intense struggle, women won the bedrock democratic right to vote through the 19th Amendment. Suffragist leader Alice Paul, aware that this first – and still only – explicit guarantee of women’s equal rights in the Constitution was not enough, proposed an Equal Rights Amendment (ERA) to affirm that legal rights are held equally by all citizens without regard to sex.

Beginning in 1923, the ERA was introduced into every session of Congress. In 1972 it finally passed and was sent to the states for ratification.

Unfortunately, it soon became – and remains – a major organizing and fundraising tool for the political right, which also vigorously opposed woman suffrage. Despite supporters’ massive lobbying, petitions, marches, rallies, and other advocacy, only 35 of the necessary 38 states ratified the amendment before the June 30, 1982 deadline imposed by Congress.

The ERA has been reintroduced into every session of Congress since that time. When the 27th (“Madison”) Amendment was added to the Constitution in 1992 after a 203-year ratification period, ERA supporters developed legal analysis proposing that ratification could be achieved if only three more states voted yes.

In the 113th Congress (2013-2014), two different types of ERA bills have been introduced: traditional legislation to ratify the ERA by the Constitution’s Article V ratification process, and three-state strategy legislation to remove the time limit on the ERA’s ratification process and declare it complete when three-fourths (38) of the states ratify, thereby retaining the existing 35 state ratifications as viable. (This seemingly streamlined second process breaks new legal ground and would face litigation that the first process wouldn’t.)

The traditional bill has been introduced in the Senate as S.J. Res. 10, with Sen. Robert Menendez (D-NJ) as lead sponsor. Rep. Carolyn Maloney (D-NY), lead sponsor of the traditional ERA bill in the House of Representatives since 1997, will introduce the House bill in the near future.

The three-state strategy bill has been introduced in the Senate as S.J. Res. 15 by Sen. Benjamin Cardin (D-MD) with lead Republican co-sponsor Sen. Mark Kirk (R-IL), and in the House as H.J. Res. 43 by Rep. Robert Andrews (D-NJ).

Does the ERA really matter? Aren’t there enough prohibitions of sex discrimination in the Equal Pay Act, the Pregnancy Discrimination Act, Titles VII and IX of the 1964 Civil Rights Act, Supreme Court decisions based on the 14th Amendment’s equal protection clause, and more?

It matters greatly, existing legislation and court decisions aren’t enough, and this is why.

The 14th Amendment, ratified in 1868, has never been interpreted to affirm women’s equal rights the way the ERA would. It was not applied to sex discrimination until 1971, and the assumption remains that males hold rights and females must prove that they hold them equally.

Ironically, one of the best arguments for the ERA was unintentionally made by Supreme Court Justice Antonin Scalia, no friend of equal rights for women, when he said in 2010 that the Constitution, specifically the 14th Amendment, does not prohibit sex discrimination.

The ERA would establish a clearer and tougher standard for deciding cases of sex discrimination, which are still handled inconsistently by federal and state courts. It would ensure that sex discrimination cases finally receive the highest level of strict judicial scrutiny, the standard applied to cases of discrimination based on race or religion.

The ERA would make it much harder to reverse course on the progress made in women’s rights. Without it, Congress can weaken or repeal anti-discrimination laws by a simple majority, and judicial precedents can be more easily ignored by a Supreme Court responding to a conservative political agenda.

Ratification of the ERA would improve our country’s credibility globally on the issue of human rights. The governing documents of many other countries, however imperfectly implemented, affirm legal equality of the sexes. Ironically, some of those constitutions – in Japan and Iraq, for example – were written under the direction of the United States government.

Opponents claim the ERA would mandate public funding of abortion. They don’t mention that some states with state ERAs (e.g., Pennsylvania) still enforce significant restrictions on abortion. In New Mexico and Connecticut, court decisions ordering public funding of medically necessary abortions for indigent women would likely have been the same, based on right of privacy and equal protection analysis, even if those states did not have an ERA.

Opponents claim the ERA would require states to allow same-sex marriage. They don’t mention that of the 12 states that have legalized same-sex marriage as of June 2013, some do and some don’t have state ERAs. That legal progress is being made based primarily on the principles of due process and right of privacy.

They claim the ERA would require that women be drafted, without mentioning that Congress already has the power to draft women, exemptions from the draft can be granted as always to those unqualified to serve for physical or parental reasons, and there is currently no prospect of reinstituting the draft.

They claim the ERA would eliminate single-sex institutions, without mentioning that precedent already exists to make unconstitutional only those institutions whose aim is to perpetuate the historic dominance of one sex over the other.

They claim the ERA would strip away Social Security and other benefits for homemaker widows of male employees, without mentioning that those and the many other protections they claim are in jeopardy would not violate the ERA if they are written in sex-neutral language based on function, not on stereotyped sex roles.

The charges against the ERA are so similar in spirit and even substance to those made against the 19th Amendment that you soon recognize an old script – the script that says man should have dominion over woman. The fight over the Equal Rights Amendment is a clash between dueling world views.

The legislative history of the ERA shows that its intent, pure and simple, is to equalize legal rights between women and men. In one sense, the ERA is in fact conservative, invoking the spirit of our country’s founding principles and challenging us to live out the inspired understanding that all men – and now that really does mean all women too – are created equal.

As the women and men who have fought for equality since the Constitution was written would agree, “Your rights shouldn’t depend on the color – or the shape – of your skin.”

See www.equalrightsamendment.org for extensive information about the ERA’s history, political status, legal necessity, FAQs, latest news flashes, and much more.

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About Roberta Francis: Roberta Francis, a gender equity consultant and writer, is Co-Chair of the ERA Task Force of the National Council of Women’s Organizations. She also manages the website www.equalrightsamendment.org, which she developed in 1999.

Bobbie has worked for 35 years on a broad spectrum of issues for women’s advancement, from education and pay equity to reproductive rights and violence against women.

In 1998 she was project director and script consultant for the educational film “The Equal Rights Amendment: Unfinished Business for the Constitution.” Her short play “The ERA That’s Yet to Come” was published in 2002 in 33 Things Every Girl Should Know About Women’s History.